FAIRFAX, Va. – A plan to ban “frequent and large gatherings at neighborhood homes” is a lawsuit waiting to happen, a Fairfax County supervisor predicts.

Officials will get an idea Wednesday when public-comment hearings begin in Virginia’s most populous county.

“I believe the county is risking a lawsuit and/or aconstitution challenge by interfering with peoples’ right to assemble,” Supervisor Pat Herrity said in a statement.

The proposed zoning ordinance limits ”group assembly” at residences to 49 people a day. Such gatherings “shall not occur more frequently than three times in any 40-day period.”

County officials say they have received complaints about group meetings at homes. But Herrity said “they haven’t even reached 1 percent of the thousands of complaints our Department of Code Compliance investigates a year.”

“This is yet another instance where we appear to be punishing the many for the actions of the few,” said Herrity, who reported a total of six complaints were received last year.

Church groups, scouting organizations or even sports fans drawn to a home’s big-screen TV during playoffs could be potential targets of the proposed county law. Realtors worry that even open houses would invite civil penalties.

John Whitehead, an attorney and president of the civil-libertarian Rutherford Institute, calls the Fairfax plan ”nefarious.”

“Broad enactments like these have governments assuming that private property is their property,” Whitehead said in an interview with Watchdog.org.

“If you can’t determine what goes on at your own residence, you have surrendered your rights. The Constitution is founded on property rights.”

It’s easy to see how something like this could lead to complaints from neighbors. A large group of people meeting a someone’s home, whether it’s for a party, a church gathering, or some such other purpose, often leads to clogged streets, loud noises, and litter in the neighborhood. Suburban residents being what they are, it’s only natural that they would complain about something like this. The fact that there have been complaints about these practices in the past, though, is not sufficient justification for the kind of ordinance that the County is considering here. For one thing, the standard of ”frequent and large gatherings in neighborhood homes” is simply far too arbitrary to pass muster. Who is to decide what is too “frequent” and what is too “large,” for example? The proposed ordinance apparently establishes that anything larger than 49 people is too large and that any meeting that occurs more than three times within 40 days is “too frequent.” However, what if someone has meetings that are outside the parameters of this statute but doesn’t really disrupt the neighborhood to any significant degree because they have a large property with sufficient space so that cars aren’t parked all over a neighborhood? Shouldn’t they be treated differently than someone who has a smaller house in a more densely packed neighborhood? There are already noise and parking regulations on the books that can regulate situations like this. If someone’s meeting isn’t violating those rules, then why should it be the concern of the County, or of any of their neighbors, what they are doing on their property?

As Brian Shoeneman points out, though, the real problem with this proposed ordinance is that it seems quite clearly to be unconstitutional:

The First Amendment is pretty clear – “Congress shall make no law abridging … the right of the peaceably to assemble.” All First Amendment clauses have long been incorporated against the States (and thus, counties in Virginia, which are governmental entities created by the Commonwealth) by the 14th Amendment. Thus, no local government can violate the First Amendment, either.

As Supervisor Pat Herrity (R-Springfield) correctly notes, “the county is risking a lawsuit and/or constitution challenge by interfering with peoples’ right to assemble.”

Pat’s point here is spot on. The Supreme Court has held, time and time again, that minor nuisances – whether it be to individuals or neighborhoods – isn’t sufficient to trump someone’s protected First Amendment rights. In two major cases, Schneider v. State of New Jersey, 308 U.S. 147 (1939) andMartin v. Struthers, 319 U.S. 141 (1943), the Supreme Court held that municipal regulations designed to impede Jehovah’s Witnesses from distributing leaflets, either on a street corner or door-to-door, represented a violation of the First Amendment and struck those ordinances down. Their rationale was relatively simple – an individual’s First Amendment rights trump a neighborhood annoyance.

At the very least, a pretty good case can be made that this provision breaches the boundaries of government regulation. But regardless of whether it violates First Amendment precedent the provision is unnecessary big government intrusion into the private lives of the citizenry.

Schoeneman is exactly right. Like many suburban communities here in Northern Virginia around the country, Fairfax County has gone far enough as it is in the adoption of laws, rules, and regulations that do nothing less than regulate the manner in which people can utilize their private property. In some cases, of course, these regulations are proper limitations that prevent a person from using their property in ways that cause a nuisance to their neighbors. However, this proposed law seems to me to go a step too far. If someone is having frequent large group gatherings at their home but isn’t otherwise disrupting the neighborhood, then why should it matter if there are 49, 53, or 72 people there or if those meetings occur more than three times in a 40 day period? Absent an actual nuisance, the rule strikes me as completely arbitrary and unsupportable both under the Constitution and as a matter of policy. Instead of trying to regulate an activity that isn’t bothering anyone, the country ought to be enforcing the regulations already on its books in cases where there are actual nuisances and disruptions to the surrounding community. Blanket bans like this should be avoided at all costs.

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About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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Comments

If only a similar law had been in place to prevent home gatherings back when noted terrorist and democrat operative Bill Ayers invited a young Barack Hussein Obama into his living room, giving the latter his start on a political career, we would not be living under tyrrany and we’d probably also have a flat tax.

By the very definition, zoning laws are limits on private property use. Why is it so different that I can prohibit one activity compared to another depending on reasoning. I can have maximal occupancies in churches, rules for parking etc. Why is a rule that sets a maximum occupancy for private homes and a maximum frequency of large gatherings so different?

How many colleges and universities are there in Fairfax County? I’m wondering if this proposed rule–which strikes me as completely unconstitutional–is aimed at preventing huge noisy drunken parties where 200 people show up at somebody’s apartment and you can hear the noise a mile away. This can be a problem is some college towns.

Otherwise, it’s pretty hard to see why anyone would want to ban a benefit for the local chamber music society attended by 50 people.

I know; I was thinking more of the situation where four or five students rent an off-campus house or apartment and then invite a couple of hundred people over each weekend to party. I live in a college town where this happens pretty much every weekend. Things get out-of-hand; the cops get called; someone gets arrested for puking on a cruiser (or a cop). But there’s no town ordinance against big gatherings on private property for any reason.

I was just curious if this was a really, really misguided attempt on the part of Fairfax to control carousing– that is, if it’s a problem there, and it doesn’t sound as if it is if they’ve had only six complaints about big parties.

Anyway, the whole thing sounds like a lawsuit in the making. What happens when someone invites fifty people to his house for coffee and pastries and sandwiches following his mother’s funeral? He gets arrested?

Yea I’m not sure how common that is, though. George Mason’s main campus is a commuter school in a lot of ways. And the real estate in the area is far too expensive for college students to afford, even if they were sharing costs.

Seems like parking restrictions, littering laws and noise regulations would be sufficient to address the issue. If someone want to invite 60 people to a house church service or to watch football on the 140 inch megascreen, they have that right under the First Amendment.

There is a public safety component to this…by code places of assembly have very distinct requirements that wouldn’t be appropriate for a house.
Other than that…I’ve got money that says this was started by a small government Republican.

Just as a matter of record, the Fairfax County Board of Supervisors is chaired by a Democrat and has a Democratic majority (7-3). Herrity, the guy who pointed out that this is a very bad ordinance, is a Republican.

@CSK: I live in a college town where this happens pretty much every weekend.

You don’t say!
While the local government may not be able to regulate gatherings on private property in a Constitutionally acceptable manner, citizens are fair game on the public way.
Not so Fairfax County should consider looking back to the measures taken here at Sleepytown U. circa 1970.
Anti war/anti draft riots that escalated after the killings at Kent State prompted the City Council to pass an emergency ordinance that stated more than two people standing together on the sidewalk constituted a mob.
When a lone pedestrian would walk past two students discussing the Euthyphro dilemma, the State cops would jump out of their cruisers, tear gas and billy club the miscreants and drag their sorry asses off to the Jackson County Jail*.
I’m sure the County Sheriff in Virginia could work with something equally creative.

*Some folks like to think the 1976 film Jackson County Jail (Yvette Mimieux, Tommy Lee Jones) was inspired by our local hoosegow. While it was a hit when it showed here I kind of doubt it.

I remember some years ago a town called in Georgia passed laws prohibiting backyard vegetable gardens. Seems like they were competing with the town’s farmers market. Weird, ridiculous. Towns do strange things. Our town and county do not allow alcoholic drinks. Our town prohibits businesses from opening before 1:00 pm on Sundays.

This is usually covered now by home owners associations. When I still owned my house I had to get the color approved, when I made any major landscaping changes that hat to be approved. A new deck or any major changes to the house had to be approved. This was written in the deed but I can’t remember what it was called covenant something or other, Doug probably knows. They also limited the number of cars we had parked on the street which reduced the number of people we could have at the house at the same time. When we were having a big gathering we used to have them park in the shopping center parking lot about a half a mile away and shuttle them up.

I bet it is aimed at churches.
Many churches at the moment promote small group bible studies in people’s homes.
We attended one and there were probably about 15 couples in ours with a variety of children.
The home we met in had a driveway and property large enough the most people could park on and in front of the property but I know other neighborhoods likely wouldn’t have worked out this way.

@JWH: Someone doesn’t understand the concept of Common Law, obviously….

I can understand why police would prefer a bright line they could use to deal with complaints, but given the number of complaints this looks like a solution running around looking for a problem…..and that’s not even getting into the unconstitutionality minefield.

Am still scratching my head. Probably generated by some suburban dweller pissed because his neighbors had a big party one night and guests parking ended up blocking his car in.

If governments can lawfully regulate how many people can live on a property I’m not seeing a constitutional barrier to them regulating how many people can visit it, so long as they have a rationale that can survive a court’s rational-basis test and don’t target a particular ethnicity, viewpoint, etc. and so long as people have somewhere else in the community that they are permitted to assemble. It seems reasonable for a community of people to decide they don’t want to have residential neighborhoods subjected to frequent large parties. The constitutional violation would be a rule that no large group can assemble anywhere in the county

Basically what I expect from a bunch of overpaid government contractors and government employees that make up the bloodsucking residents of Fairfax County.

Glad I left the cess pool that is DC and its surrounding people’s republic municipalities 3 years ago. Enjoy your traffic, overpriced real estate, shitty self-important neighbors, and your lack of basic freedoms (such as meeting with a gathering of people at the HOUSE YOU SUPPOSEDLY OWN).

> Fairfax county set to abridge freedom of: assembly, freedom of speech and freedom of religion with proposed zoning ordinance
>
>> I attended the Public comment yesterday at the Fairfax County Assembly room. I ended with:
>> “Do we really want to have an ordinance in Fairfax county that is more restrictive than the Communist government in China? As my brother as a U.S. Citizen regularly holds weekly worship services in his home (in China) on a weekly basis with 70 people or more.
>>
>> I received a round of applause from nearly everyone present (about 60+ people).
>>
>> Apparently Fairfax county has a long history of hostility towards religion and churches. They have done this in: church building permits, signs, and now freedom of assembly.
>>
>> ==================================
>>
>> Fairfax County proposed ordinance
>> ======================
>> http://www.fairfaxcounty.gov/dpz/zoning/groupassembly/
>>
>> Comment here:
>> ======================
>> http://www.fairfaxcounty.gov/dpz/zoning/groupassembly/groupassemblysubmissionform.htm
>>
>> http://bearingdrift.com/2014/05/05/fairfax-county-poised-to-shut-down-home-bible-studies/

If you want to pass an fire code occupancy or a noise ordinance or a parking ordinance or a commercial regulation ordinance that is fine. What this ordinance does is restrict freedom of assembly. Otherwise the text of the proposal would state otherwise.

The ironic thing is that the county at the 5/12/2014 public hearing assured us that (paraphrasing) “this ordinance is constitutional because our lawyers wouldn’t dare put anything up that is unconstitutional…” Yet, the entire 1st half of the public comment was about changes to their existing noise ordinance that they said was feared to be unconstitutional (that probably these same lawyers were consulted with on this assembly ordinance).

Also, they opened up the meeting with “…you’ve probably heard the press about (paraphrasing) this ordinance restricting freedom of assembly to < 49 people 3 times or less in a 40 day period… this is completely untrue". Then, she went on to state the text of the ordinance which states: "31. Group assembly when accessory to a dwelling unit shall be permitted, except any group 11 assembly exceeding forty-nine (49) people in one day shall not occur more frequently than 12 three (3) times in any forty (40) day period."

So, she just basically lied twice to the group during the public comment period in front of everyone.

There is a spirit of lying and lawlessness that is generating this ordinance and the county officials are obviously not being honest with the public. Go and view the video from the 5/12/2014 public meeting at Fairfax County government ctr. assembly hall that took place and you can see it plain as day.

The text of this proposal makes no consideration whatsoever for the size of the house or the property, it is not about occupancy limits. It is about freedom of assembly. Just another reason why it is unconstitutional.

They have other ordinances such as noise and parking that can deal with nuisances without restricting peaceable (non-nuisance activities) assemblies. Let’s say you have a large house and want to hold a book club with 60 people present and you shuttle bus them in to your house so that there are no parking or noise concerns. What justification would you give to have such an ordinance under this circumstance?

This is exactly what this ordinance does, restrict 1st amendment rights to freedom of assmembly.